Divorce Act 1 8 69

2
ACKNOWLEDGEMENT
ACKNOWLEDGEMENT
I am very thankful to everyone who all supported me,for i have completed my
project effectively and moreover on time.
I am equally grateful to my teacher Dr.Kehkasha Danyal .She gave me moral
support and guided me in different matters regarding the topic.She had been very
kind and patient while suggesting me the outlines of this project and correcting
my doubts.I thank her for her overall supports.
Last but not the least, I would like to thank my seniors who helped me a lot in
gathering different information, data and guiding me from time to time in making
this project ,despite of their busy schedules ,they gave me different ideas in
making this project unique.
Thanking you
ANIRUDH ARORA
B.A.LL.B(HONS.)5
th
sem
JAMIA MILLIA ISLAMIA
3
T able of C on tent
D IV O R C E A CT 18 6 9
............................................................................................... .................................................. l
INT R O D UCT I O N : ............................................................... ..................................................................................
.... 5
D IF F E R E N C E BE T W EE N T H E D IV O R C E L A WS IN IN D IA A N D UNIT E D K ING D O M :
............................................................... .. 6
MAlN
LEGlSLATlON:........................................................................................................................................................................
6
GROUNDS FOR DlVORCE:
............................................................................................................................................................... 7
PROCEDURE FOR OBTAlNlNG DlVORCE:
........................................................................................................................................ 8
STATEMENT OF OBJECTS AND REASONS OF THE ACT:
................................................................................................................... 8
DE F INIT I ONS A N D IN T E RPR E T A TI O N :
............................... .......................................................................................... 9
lNTERPRETATlONS OF THE ABOVE DEFlNlTlONS ARE:
................................................................................................................. l0
PROVlSlONS OF THE ACT RELATlNG TO JURlSDlCTlON:
............................................................................................................... ll
PROVlSlONS OF THE ACT RELATlNG TO DlSSOLUTlON OF MARRlAGE:
........................................................................................ l2
PROVlSlONS OF THE ACT RELATlNG TO DlSSOLUTlON OF MARRlAGE:
........................................................................................ l5
4
PROVlSlONS OF THE ACT RELATlNG TO JUDlClAL SEPARATlON:
.................................................................................................. l6
PROVlSlONS FOR PROTECTlON OF A DESERTED WlFE'S PROPERTY:
............................................................................................ l7
PROVlSlONS REGARDlNG RESTlTUTlON OF CONJUGAL RlGHTS:
................................................................................................. l8
PROVlSlONS FOR DAMAGES AND COSTS:
.................................................................................................................................... l9
PROVlSlONS FOR ALlMONY:
......................................................................................................................................................... 20
4
PROV I S IO N S F OR S E TT L E M E N T S :
............................................................................................................................. 2l
PROVlSlONS FOR CUSTODY OF THE CHlLDREN:
........................................................................................................................... 2l
PROC E D U R E S R E L A TING TO T H E D IV O R C E A CT :
............................................................... .......................................... 22
PROVI SION S R EGAR DING REM ARRIAG E:
............................... ................................................................................... 23
OTHER PROVlSlONS:
..................................................................................................................................................................... 24
FOOT
NOTES : ...........................................................................................................................................................................
39
5
l n t roduct i on:
Before the advent of Christianity, Roman law did not prescribe any formalities for marriage or
divorce. But after Christ, marriage came to be regarded as a sacrament and the roman church
came to be regarded as the supreme authority in all matrimonial matters. lt was not until
reformation that visible changes began to surface in the Christian concept of marriage. The
Protestants looked upon marriage as a civil contract rather than a religious union. The industrial
revolution gave a further impetus to the protestant concept of marriage being essentially a contract
and therefore a dissoluble union.
Many centuries ago, Christians came to lndia and settled in this country when East lndia Company
assumed ruling power in lndia and established its own courts. With the establishment of the
supreme courts, the common law of England was made applicable in lndia on many subjects
including marriage and divorce among the Christian community. Christian marriages are
governed by the lndian Christian marriage act
l872 and divorce by the divorce act l869. Until 200l, both these acts stood in contradistinction to
statutes
governing other communities in lndia. Cases like Solomon v. Chandirah l968, Jordan v. Chopra
1
,
and many others reminded the judiciary from time to time that there was an urgent need to update
these acts so that they could become relevant to present social conditions.
l 1985 AIR 935
6
Difference between the divorce laws in lndia and United Kingdom:
M a i n le g isl a tion:
The law system in lndia is based on the common law and is therefore ultimately derived from the
system in England and Wales. Therefore are many similarities between both jurisdictions with the
fundamental difference in lndia the divorce law is based on different faiths and communities.
ln lndia the way one achieves divorce is essentially based on what religious community one is
part of and if the marriage is an interfaith one than there is special regulation that governs that,
these laws are detailed below:
Hindu marriage act l955 pertains to Hindus, Sikhs, and Jains
Divorce act l869- pertains to Christians
Parsi marriage and divorce act l936- pertains to Parsi's
Dissolution of Muslim marriages act l939 - pertains to Muslims
Special marriage act l954 - pertains to divorces from civil marriages and those between
different communities
ln the United Kingdom, divorce legislation is not differentiated on the basis of religion but is mainly
secular, these are detailed below:
Matrimonial causes act l973
Family law act l996
7
Gro u n d s for d i vo r c e :
ln lndia there are five grounds for divorce which are listed below:
Adultery- only infidelity needs to be proven by either man or woman
Desertion- this occurs when there is a mixture of interruption of cohabitation and
justifiable and reasonable absence for 3 years with an intention from the respondent to
permanently separate themselves from the petitioner who has been left behind. The same
also applies to 7 year absences.
Cruelty - includes abuse which is physical as well as mental. However despite
presumed gender equality, it is applied differently to men and women
Impotency- can include not being able to consummate marriage, one spouse not wanting
to do so and could also be due to sterility.
Chronic disease- could include STDS, mental and physical illness. Although Christians
and Parsi's cannot divorce due to STDS or leprosy.
ln United Kingdom, there are five facts for irretrievable breakdown of marriage according to
matrimonial
cause's act l973s l(2):
Adultery- adultery + cruelty of defendant
Unreasonable behavior- petitioner cannot be expected to live with respondent
Desertion
2 years + consent of respondent or
5 years living apart continuously
8
P r o c e d u r e for obta i n i ng d i vo r c e :
ln lndia, divorce can be obtained
as:
Mutual consent divorce- the consent of husband and wife needed on alimony,
maintenance and child custody.
Contested divorce - if eligible on grounds mentioned above, papers must be
submitted to be examined by the judge, if approved then divorce decree granted
ln United Kingdom, divorce can be obtained by a special procedure. There is no court appearance
as the judge just examines the documents and what is mentioned within it and if he/she finds it
acceptable grants decree of divorce and it is very rare for these to be defended.
S tateme n t o f o b je cts a nd re aso n s of the
a c t:
The divorce act came into force on lst April l869 and extends to the whole of lndia except
Jammu and
Kashmir. The word 'lndian' was omitted by the lndian divorce (amendment) act,
200l.
The purpose of this act is
twofold:
To amend the law relating to divorce of Christians and
To confer upon certain courts in lndia matrimonial jurisdiction not enjoyed by them earlier.
As observed in the case of Pramilla Khosla v. Rajneesh Khosla is that no relief can be granted
under this act by any court unless either of the parties professes the Christian religion. As far as
decrees of nullity of marriage are concerned two conditions need to be satisfied before the
court can exercise jurisdiction under this act:
l. Marriage should have been solemnized in lndia and
2. The petitioner should be resident of lndia at the time of presenting the petition
However, it was noted in the case of Vincent Joseph Kenneth v. Jacinta Angela Konath that the
provisions of this act can be invoked by the parties who are domiciled in lndia even if the marriage
was solemnized outside of lndia.
9
D e fi n i ti ons a n d i n te rp re ta ti on:
Section 3 gives a few definitions for the purpose of this act which are
discussed below:
1. "High court!
High court means with reference to any area:-
oln a state, the high court of Delhi;
oln Delhi, High court of Delhi;
oln Himachal Pradesh, the High court of Punjab and Haryana up to and
inclusive of the
30th April, l967 and the High court of Delhi thereafter;
oln Manipur and Tripura, the High court of Assam;
oln the Andaman and Nicobar islands, the high court at Kolkata;
oln [Lakshadweep ], the High court of Kerala;
oln Chandigarh, the High court of Punjab and Haryana;
And in the case of any petition under this act, "High court" means the high court for
the area where the husband and wife reside or last resided together.
". District #udge!
"District judge" means a judge of a principal civil court of original jurisdiction
however designated.
3. District court!
"District court" means, in the case of any petition under this act, the court of the
district judge within the local limits of whose ordinary jurisdiction, or of whose
jurisdiction under
this act, the husband and wife reside or last resided together.
$. Court!
"Court" means the high court or the district court, as the case may be.
%. Minor children!
"Minor children" means, in the case of sons of native fathers, boys, who have not
completed the age of sixteen years, and, in the case of daughters of native fathers,
girls who have not
completed the age of thirteen years: in other cases it means unmarried children
who have not completed the age of eighteen years.
&. Incestuous adultery:
"lncestuous adultery" means adultery committed by a husband with a woman with
whom, if his wife were dead, he could not lawfully contract marriage by reason of
her being within
the prohibited degrees of consanguinity (whether natural or legal) or affinity.
'. (igamy )ith adultery:
"Bigamy with adultery" means adultery with the same woman with whom the
bigamy was committed.
*. Marriage )ith another )oman!
"Marriage with another woman" means marriage of any person, being married, to
any other person, during the life of the former wife, whether the second marriage
shall have taken
place within [lndia] or elsewhere.
10
+. Desertion!
"Desertion" implies abandonment against the wish of the person charging it; and
1,. -roperty!
"Property" includes in the case of the wife any property to which she is entitled for an
estate in reminder or reversion or as trustee, executrix or administratrix; and the date
of the death of the testator or interstate shall be deemed to be the time at which any
such wife becomes entitled as executrix or administratrix.
lnte r p r etati o ns of the a b ove d e fi n itio n s are:
l. Court for the purpose of this act means the high court or district court as the case maybe.
2. District court means the court of the district judge where the marriage was solemnized or
where either parties are currently residing or last resided.
3. Minor children in case of native fathers are boys who have not completed the age of l6
years and girls who have not completed the age of l3 years. ln other cases, it is unmarried
boys or girls who have not completed the age of l8 years.
4. The terms 'incestuous adultery' and 'bigamy with adultery' have been omitted by the lndian
divorce
(amendment) act, 200l.
5. Desertion means abandonment of a spouse against the wish of such spouse.
6. Marriage with another woman means marriage with of a man with any other woman
during the lifetime of the former wife irrespective of whether such marriage was solemnized
in lndia or any other country.
7. Property includes any property which a wife is entitled for an estate in remainder or
reversion or as a trustee, executrix or administratrix.
11
P r ov i sions of the a c t re la ting to ju ri sdi c tion:
l. Section $! matrimonial jurisdiction of high courts - the jurisdiction exercised by the high
court's at the time when the divorce act came into force in respect of divorce a mensa et
toro, and in all other matrimonial, is to be exercised by such high courts and district courts
subject to the provisions in the said act.
2. However, after the passing of the family courts act l984, it has been held that the family
courts also have concurrent jurisdiction to pass a decree for dissolution of marriage under
this act (Dr. Mary v. Dr. Vincent)
3. Section %: enforcement of earlier decrees and orders - any decree or order passed by
the then supreme court of judicature at Calcutta, madras or Bombay in exercise of their
ecclesiastical or matrimonial jurisdiction, before the act came into force, may be enforced
and dealt with by the High Courts and District Courts, respectively.
4. Section &! pending suits - regarding all matrimonial suits and proceedings pending in any
high court when this act came into operation are to be dealt with and decided by such
court as if they had been originally instituted therein under this act.
5. Section '! court to act on principles of English divorce court - this section has been
repealed by the
lndian divorce (amendment) act, 200l.
6. Section *: extraordinary jurisdiction of high court - the high court may, whenever it
thinks fit, remove and try and determine as a court of original jurisdiction any suit or
proceeding instituted under this act in the court of any district judge within the limits of its
jurisdiction under this act. The high court also has the power to withdraw any such suit and
transfer it for trial and disposal to any district judge within the high court's jurisdiction.
7. Section +! reference to high court - if any question of law or usage having the force of law
arises at any point in the proceedings previous to the hearing of any suit, or in the
execution of the decree therein or order thereon, the court may, either of its own motion or
on the application any of the parties, draw up a statement of the case and refer it, with the
court's own opinion thereon, to the decision of the high court.
12
P r ov i sions of the a c t re la ting to d i s soluti o n of mar r ia g e :
l. When a Christian husband or wife can obtain a decree of dissolution of marriage under
sections l0 and ll - as observed in George Sebastian v. Molly Joseph, the ecclesiastical
tribunals have no jurisdiction to pass a decree of divorce in Christian marriages.
2. As per recent amendments, ten grounds have been enumerated which are available to
both parties while praying for dissolution of marriage:
l. Adultery - although the term adultery has not been defined in the act, it refers to the
willing sexual intercourse between a man and a woman one of whom is married to
the third party. As direct evidence of adultery is not insisted upon and circumstantial
evidence is generally relied upon by the courts. (Simon v. Bakla) however, hearsay
or simple communication between a man and woman does not amount to proof of
adultery. (Raspin v. Raspin l953). Also petition presented by a husband, the
petitioner must make the alleged adulterer a correspondent to the said petition,
unless he is excused from so doing on one of the following grounds as allowed
by the court:-
i. That the respondent is leading the life of prostitute, and the petitioner knows
of no person with whom the adultery has been committed;
ii. That the name of the alleged adulterer is unknown to the petitioner, although
he has made due efforts to discover it;
iii. That the alleged adulterer is dead.
ll. Ceasing to be a Christian by conversion to another religion
lll. Unsound mind for a continuous period of not less than 2 years immediately
preceding the presentation of the petition
lV. Suffering from virulent and incurable form of leprosy for a continuous period of
not less than 2 years immediately preceding the presentation of the petition
V. Suffering from venereal disease in a communicable form for a continuous period of
not less than 2 years immediately preceding the presentation of the petition
Vl. Not heard to be alive for a period of seven years or more by those who would
normally hear from that spouse
Vll. Willfully refused to consummate marriage and therefore the marriage has
not been consummated
Vlll. Failed to comply with the decree for restitution of conjugal rights for a period of 2
years or more after the passing of the decree
lX. Desertion for at least 2 years immediately preceding the presentation of the
petition with
the presence of 2 elements in such desertion; actual separation and intention to
desert. (Bull v. Bull l933) however, it is important to note that if the husband creates
circumstances which compel the wife to leave the house it is husband and not the
wife who is guilty of desertion
2
.
X. Cruelty - as the term cruelty is not legally defined, it is dependent on the facts of
each case
3
. While considering the petition on the grounds of cruelty the courts must
keep in mind the mental, physical and emotional condition of the parties, their
character and social status.
3. When a Christian wife can obtain a decree of dissolution of marriage under section l0 - in
addition to the above grounds, a Christian wife can file a petition for dissolution of marriage
if the husband has been guilty of rape, sodomy or bestiality since the solemnization of
marriage. Although this act does not define rape, reference can be made to section 375 of
2 Handa v. Handa l985
3 Sheldon v. Sheldon l966
lndian penal code wherein rape is defined as:
13
"A man is said to commit rape who has sexual intercourse with a woman against her will or
without her consent or with her consent where her consent has been obtained by putting her
or any person in whom she is interested in fear of death or fear or with her consent when
the man knows that he is not her husband and that her consent has been given because she
believes that he is another man to whom she is or believes herself to be lawfully married
or with her consent, when at the time of giving such consent by reason of unsoundness of mind
or intoxication or the administration by him personally or through another of any stupefying or
unwholesome substance she is unable to understand the nature and consequences of that
to which she gives consent or with or without consent when she is under the age of sixteen
years."
4. Divorce by mutual consent under section l0-a divorce by mutual consent, the petition
can be presented by both parties together on the grounds that:
l. They have been living separately for a period of 2 years or
more; ll. They have not been able to live together; and
lll. They have mutually agreed that the marriage should be dissolved.
5. When such a petition is presented by both the parties not earlier than six months and not
later than eighteen months, the court shall, on being satisfied after hearing both the parties
and making necessary inquiries pass a decree declaring the marriage dissolved with effect
from the date of the decree.
6. Whenever a petition is filed for dissolution of marriage it is the primary duty of the court to
ensure that there is no collusion between the parties -
l. The court must dismiss the dissolution petition under section l3,
if it is: ll. Satisfied that the petitioner's case is not proved or
lll. Not satisfied that the alleged adultery is proved or
lV. Found that the petitioner has during the marriage been accessory to or has
connived at the going through of the marriage of the adultery of the other party or
has condoned the adultery complained of or
V. Satisfied that the petition is presented in collusion with either of the respondents.
7. When the court must grant the petition - in case the court is satisfied that the evidence of
the case proved by the petitioner and does not find that the petitioner has been in any
manner accessory to, or conniving at, the going through the form of marriage, or the
adultery or has condoned the adultery complained of, or that the petition is presented or
prosecuted in collusion with either of the respondents, the court shall pronounce a decree
of dissolution of the marriage.
8. The court is not bound to pronounce the decree if the
petitioner: l. Himself or herself has been guilty of
adultery or
ll. Unreasonably delayed in presenting or prosecuting the petition or
lll. Guilty of cruelty towards the spouse or
lV. Desertion or willful separation from the spouse before the adultery complained
of and without any reasonable excuse or
V. Guilty of willful neglect or misconduct towards the spouse.
9. Relief in case of opposition on certain grounds - when a suit is instituted for dissolution
if the respondent opposes the relief sought on specified grounds the court may give to
the respondent
14
the same relief to which he or she would have been entitled to if he or she had
presented the petition for matrimonial relief on the following cases:
l. Dissolution suit filed by the husband - his adultery, cruelty or desertion and
ll. Dissolution suit filed by the wife - her adultery, cruelty or desertion.
l0. This is done in order to:
l. Avoid multiplicity of suits between the same parties and
ll. Enable the courts to render full and complete justice.
ll. Decree nisi and confirmation of decree under section l6 and l7 - decree nisi is a
conditional decree which needs to be confirmed by the court later on. Every decree for
dissolution of marriage made by a high court is to be a decree nisi. And such a decree is to
be made absolute after the expiration of such time, not less than six months from the
pronouncing thereof, as the high court, by general or special order directs. During this
period any person can approach the high court praying that the said decree should not be
made absolute by reason of the same having been obtained by collusion or by reason of
material facts not being brought before the court.
l2. On such cause being so shown, the court shall deal with the case by making the decree
absolute, or by reversing the decree nisi, or by requiring further inquiry, or otherwise as
justice may demand. Whenever a decree nisi has been made, and the petitioner fails,
within a reasonable time, to move to have such decree made absolute, the high court may
dismiss the suit. During the period when the decree nisi is in force, the status of the
petitioner and respondent does not change
4
when a suit is pending before a district judge,
any person who suspects collusion therein may apply to the high court which may if it thinks
fit, remove such suit to itself and try and determine the same as the court of original
jurisdiction.
4 Sunandra v. Subbarao l957
15
P r ov i sions of the a c t re la ting to d i s soluti o n of mar r ia g e :
l. When a Christian husband or wife can obtain a decree of nullity under section l8 and l9
- the husband or wife have the right to present a petition to the district court praying that his
or her marriage to be declared null and void on any of the following grounds:
Impotency - impotency of the other spouse both at the time of marriage and at the
time of filing the suit is ground on which a decree of nullity can be obtained under the
act. Proof of impotency can be deduced from medical reports and if the spouse
refuses to undergo a medical examination the court can draw an adverse inference
about the same. (Biswas v. Biswas)
-rohibited degree o. consanguinity or a..inity - consanguinity denotes a
relationship by descent or collaterally (example: mother and son, cousins). Affinity
means a relationship not
by blood but by marriage (example: man and his wife's sister). A decree of nullity can
be granted on the ground that the parties to the marriage are within prohibited
degrees of consanguinity or affinity.
/unacy or idiocy - a decree of nullity can be passed on the ground that either
party to the marriage was a lunatic (i.e. A person of unsound mind) or idiot (i.e.
mentally defective person who is unable to guard himself against common physical
dangers) at the time of the marriage. However, short temper or erratic behavior does
make a person a lunatic or an idiot.
Marriage contracted during the li.e time o. the .ormer spouse - this clause
emphasizes the rule of monogamy amongst Christians. The petitioner must prove
that there was a previous marriage of the spouse that such marriage was in full force
and effect when the second marriage took place and that the former spouse of such
earlier marriage was alive on the date of the second marriage.
Consent obtained by .orce or .raud - a decree of nullity can be passed if consent
of either party was obtained by fraud or force. Example: the bride's pregnancy
(with another man)
concealed at the time of marriage is fraud as discussed in the case of Raju
v. Janaki. However, consent obtained on a misrepresentation of the bride's virginity
or character does not amount to fraud as noted in the case of David v. Kalpana.
ln case of such void marriages, a third party cannot petition the court, as such right
is vested only in the spouses to such a marriage (Simpson v. Biswas l980)
2. Section 2l relating to children of annulled marriage is applicable only if the marriage is
annulled on any of the following grounds:
That a former husband or wife is alive, the second marriage is contracted in good
faith and full belief of the parties that such former husband or wife was dead or
On the grounds of insanity
ln such cases, the names of the children begotten before the annulment decree
are to be specified in such decree and they become entitled to succeed to their
parent's property as if
they were legitimate
children.
16
P r ov i sions of the a c t re la ting to ju d i c i al sep a ra tion:
l. 0udicial separation! after the amendments in the divorce act, section 22 clarifies
that a court cannot pass a decree of divorce a mensa et toro. however, a court can pass a
decree of judicial separation on any of the following grounds:
adultery or
cruelty or
desertion for 2 years or more
Such a petition can be filed either by the husband or the wife and a decree on such a
petition would have the effect of a divorce a mensa et toro. (i.e. separation in bed and board)
2. Lapse of time is not an absolute bar to a suit for judicial separation. however, whenever
there is undue delay in presenting such a petition, it is a matter which the court should take
note of by calling the petitioner to explain the delay (boulting v. boulting)
3. -osition o. separated )i.e: When a decree for judicial separation is passed as
long as the separation continues, the wife is to be regarded as unmarried with respect to
any property which she may acquire or devolve upon her. such property can be disposed
of by her as if she was unmarried and on her death interstate such property devolves as if
her husband was not alive. section 25 states that a separated wife so long as the
separation continues, the wife is to be regarded as unmarried for the purpose of entering
into contracts for the purpose of wrongs and injuries and for suing and being sued in civil
proceedings. the husband is not to be liable in respect of any contract or for any act done
by her during the period of judicial separation.
4. 1eversal o. decree o. separation! Section 26 lays down that an either spouse may
present a
petition to the court which had passed such a decree of judicial separation praying that the
decree be reversed on the ground that it was obtained ex parte. when the decree has been
passed on the grounds of desertion, it can also be shown to the court that there was
reasonable excuse for the alleged desertion. in such cases the petitioner must prove:
Reasons for absence, explaining satisfactorily the circumstances that gave
rise to his absence.
Put forth circumstances and arguments that the decree of judicial separation was
wrongly passed
5
.
5 Dalchand Kashiram v. anna razi l950
17
P r ov i sions for p r ote c ti on of a d e sert e d wife's property:
l. A wife who has been deserted by her husband and to whom as per section 20 of the
lndian succession act l925, does not apply may apply to the court at any time after such
desertion, for an order to protect any property acquired by her or of which she is
possessed, and also property which she may acquire or become possessed of after such
desertion, against her husband or his creditors or any person claiming under him.
2. lf the court is satisfied that such wife was deserted without reasonable excuse and that
she is
maintaining herself by her own industry or property it may pass an order protecting her
earnings and other property from her husband and other persons claiming under him
and from the husband's creditors.
3. Such an order can be varied or discharged on an application by the husband or any person
claiming under him, or by any creditor of the husband, if the court is satisfied that the
desertion has ceased or if there any other good reason to do so.
4. Under section 30, if the husband or any person claiming under him or his creditors
seizes or continues to hold the wife's property even after notice of any such order, he
becomes liable not only to redeliver the specific property to her but also to pay her a sum
equal to double its value.
5. Lastly section 3l, lays down that as long as such a protection order remains in force
and she continues to be deserted, she is to be regarded in all respects with regard to their
property, contracts and capacity to sue and be sued, to be in the same position as if
she had obtained a decree of judicial separation under the act.
18
P r ov i sions re g a r d i ng re s tituti o n of co n ju g a l ri g hts:
l. Section 3" states that if either the husband of wife has withdrawn from the society of the
other without reasonable excuse, the other party may apply to the court for the restitution of
conjugal rights. if the court is satisfied about the truth of the statements made in such a
petition and that there is no legal grounds why such an application should not be granted,
it may decree restitution of conjugal rights.
2. lt is further provided that anything which amounts to a ground for judicial separation or
nullity of
marriage, would be a complete defense to such a petition.
3. Withdrawal from society: a lawful wedlock between a man and a woman imposes an
obligation on both the spouses to live and cohabit with such other. withdrawal from society
means cessation of cohabitation as a voluntary act of one of the spouses. the withdrawal
from society of a spouse amounts to withdrawal from the totality of conjugal relationship.
4. 2ithout reasonable e3cuse: under the act, it is not enough that one spouse has
withdrawn from the society of the other. it is also necessary that such withdrawal should be
without reasonable excuse. therefore, the following cases have been held to be reasonable
cause:
the husband insisting that his wife should eat meat and drink liquor.
persistent nagging of the wife by the husband's parents
act of physical violence
addiction to drinks or drugs accompanied by violent temper
5. (urden o. proo.! in the petition filed for restitution of conjugal rights the burden of proof is
always on the petitioner. the petitioner must successfully prove on the strength of his own
case. the petitioner cannot succeed only on the grounds that the defenses of the
respondent have not been established.
19
P r ov i sions for d a mag e s a n d cos t s:
The provisions for damages and costs contained in section 34 and 35 of the divorce act have
been deleted by the amendment of 200l. However, the following three provisions of the act which
deal with payment of costs may be noted:
l. Under section l6, in suits filed for dissolution of marriage the high court may order the
cost of counsel, witnesses and other costs to be paid by both the parties or by one or more
of them as it thinks fit.
2. Under section 49, when the petitioner is a minor, the petition can be filed only after his next
friend gives an undertaking in writing to be answerable for costs.
3. Under section 55, no appeals can be filed only on the subject of cost.
20
P r ov i sions for ali m o n y:
The term alimony is used to describe the allowance granted by a court to a woman who is not
living with her husband. Alimony is of two types:
l) Alimony -endent /ite: it is the alimony which the court directs the husband to
pay to the wife during the pendency of the suit. an application can be made by
the wife for expenses of the proceedings and for alimony during the pendency of
a matrimonial suit filed under the act, whether by the husband or by the wife.
such a petition is to be served on the husband and after hearing both the
parties the court may pass an order for payment of such expenses and for
alimony pendente lite. the rationale of the provision is to enable the wife to
maintain herself until the court passes an order in the pending matrimonial
petition. it is now provided by the amendment of 200l that petitions filed for
expenses of the proceedings and for alimony pendente lite should be disposed
off as far as possible within 60 days of the service of such a petition on the
husband. where the husband has no property or income, the court would be
justified in refusing to order any alimony pendente lite (fletcher v. fletcher). the
Allahabad high court has held that the fact that the wife can go and live with her
father does not mean that she cannot claim alimony pendente lite from the
husband (joshi v. ganga devi). the court would also consider what the wife's own
income is. however the fact that she is possessed of ornaments would not
disentitle her from claiming such alimony (kuriakose v. kuriakosel958). the
Kerala high court has held that even if a wife has independent means of income,
she can claim alimony pendente lite (Matthew v. kuruvilla l990).
ll) -ermanent Alimony! it is the alimony granted by the court when passing the
decree.
when the court passes the final decree for dissolution of marriage or judicial
separation it may order the husband to pay to the wife, a gross sum of money, or
an annual amount for any term not exceeding the wife's life as the court
thinks reasonable. for this purpose, the court may direct that proper documents
be executed by all necessary parties. in passing such an order the court must
have regard to:
the wife's fortune
ability of the husband
conduct of both parties.
2. ln such cases the court can also pass an order directing the husband to pay to the
wife such monthly or weekly sums for her maintenance and support as the court may think
reasonable. if for any reason the husband afterwards becomes unable to make the
payment to his wife the court can discharge or modify the order, or even suspend it
temporarily, wholly or in part and again review the same later on as it deems fit. the court
may also afterwards increase the amount payable by the husband on a monthly or weekly
basis if circumstances exist to justify a large amount payable as alimony to the wife
6
. ln
Attwood v. Attwood l968, the court of appeals in England laid down the following general
principles to be kept in mind when determining the quantum of payment of alimony to be
awarded to the wife:
l) Whether during the cohabitation, the wife and the children shared with the
husband a
living appropriate to their
income.
ll) ln case whether the cohabitation was disrupted by the husband's matrimonial
offence the subsequent standard of living of the wife and children should not
suffer, as far as possible.
lll) Generally speaking, the wife and the children should not be regulated to
6 iswarayya v. iswarayya l930
a to a significantly lower standard of living than that of the husband.
lV) the reasonable expenses of each party must be taken into account
V) the wife's income and even her potential earning capacity must always be kept
in mind
Vl) The court's order must not depress the husband below the subsistence level.
21
i. -ayment o. alimony to the )i.e or her trustee! in all cases of grant of
alimony, the court may direct the amount to be paid directly to the wife or to a
trustee on her behalf. such a trustee must be approved by the court, which
can impose any terms or restrictions on him. the court can also appoint a
new trustee from time to time if it deems it expedient to do so.
P ro vis i ons fo r s e ttl e m en t s:
Section 39 dealing with the court's power to order a settlement of the wife's property has been
deleted by the amendment of 200l. however, under section 40 the court may before passing a
decree for dissolution or nullity inquire into the existence of anti-nuptial or post-nuptial settlements
and pass orders as regards the property settled for the benefit of the husband or of the wife or of
the children or of the children and parents as the court may deem fit. the only restriction is that no
order can be passed for the benefit of the parents at the expense of the children
7
.
P r ov i sions for cu s tody of the
c h il d re n:
Custody of children is a delicate but unavoidable matter involved in most matrimonial proceedings.
l. Section 4l therefore lays down that in any suit for judicial separation the court may
pass orders as it deems fit as regards the custody, maintenance and education of
the minor children whose parents' marriage is the subject matter of the suit. such
orders maybe in the nature of interim orders or maybe a part of the decree itself. lf
found necessary, the court may also direct proceedings to be taken for placing
such children under the protection of the court. it is now provided by the
amendment of 200l, that such an application should be disposed off as far as
possible within 60 days from the date of service of the notice on the respondent.
2. Such orders can also be made after a decree of judicial separation has been passed
by the court.
3. Section 43 states that such an order can also be passed in a suit for obtaining
dissolution of marriage or a decree of nullity of marriage.
4. Furthermore section 44 provides that even after a final decree for dissolution of
marriage or a decree of nullity of marriage, an application to the court can be made
at any time for the custody, maintenance and education of a child or for placing such
a child under the protection of the court. the person to whom the custody of a child is
given can also be directed not to remove such child outside the court's jurisdiction
(Duncan v. Duncan l939). it is to be remembered there are no hard and fast rules
that can be laid down in matters relating to the custody of children and the court
has to exercise its discretion according to the facts and circumstances of each
case. the interest and welfare of the child are always the paramount consideration
in all matrimonial suits. if the child is old enough to form an intelligent opinion, the
child's opinion should also be given due weight in deciding which parent shall have
custody of the child
8
. even when one of the parents is given the custody of the
child, the other parent may be given visiting rights
9
7 Matheson v. Matheson l935
8 ammal v. ammal l924
22
P roc e d u re s rel a ti n g to t he d i v o rce a c t :
All proceedings under this act are regulated by the code of civil procedure subject to any specific
provision to the contrary in the divorce act. if however, there is any specific provision in the act,
that provision and not the one under the civil procedure code, would apply to the matrimonial
proceedings.
l. 4orms 5. -etitions! the schedule to the divorce act sets out various forms to be
used with such variations as the circumstances may require for all proceedings
under the act. when a petition is filed for a decree of dissolution of marriage or nullity
of marriage or judicial separation the petition must state that there is no collusion or
connivance between the petitioner and the other party to the marriage.
2. Suits (y /unatics And Minors! if the husband or the wife is a lunatic or an
idiot any suit under the act (except for a suit for restitution of conjugal rights) may be
filed on his or her behalf by the committee or some other person entitled to his
or her custody. if the petitioner is a minor, he can sue by his next friend to be
approved by the court and such petitions can be presented only after the next friend
has given an undertaking in writing to be answerable for the costs of such a suit.
such an undertaking is to be filed in the court and the next friend becomes liable to
pay costs as if he was the plaintiff in an ordinary suit.
3. Service 5. -etition! every petition under the act is to be served on the party who
may be in or outside lndia in such manner as the high court may direct by a general
or special order. in a fit case, the court may dispense with service of a petition if it
deems it necessary or expedient to do so.
4. Mode 5. 6a7ing 8vidence! under section 5l, all proceedings under the act the
witness are to be examined orally in the court and any party can offer himself or
herself as a witness. this examination of a party's witness by the party itself is known
as examination-in-chief. instead of deposing orally in the court an affidavit of the
witness can also be filed. this affidavit would then constitute the examination-in-
chief. after that the opposition party has a right to put oral questions to such a
witness. this is known as cross-examination. thereafter, the party who brought the
witness may wish to ask further questions to his witness. this is known as re-
examination.
5. Competence 5. Spouses 6o 9ive 8vidence As 6o Cruelty 5r Desertion! section
52 lays down
that in cases where a husband or a wife has filed a petition for dissolution of
marriage on the ground of adultery, cruelty or desertion the husband and wife are
competent to give evidence relating to such cruelty or desertion in the court.
6. Hearings In Camera! of all judicial proceedings the dirtiest linen washed in public
and the greatest amount of mudslinging is to be found in matrimonial proceedings.
section 53 states that the court thinks fit any proceedings under the divorce act may
be conducted wholly or in part behind closed doors.
7. -o)er 6o Ad#ourn! section 54 clarifies that the court may from time to time
adjourn the hearing of any petition held under the act.
8. 8n.orcement 5. 5rders And Decrees! section 55 provides that all orders and
decrees passed by a court under the act, can be enforced in the same manner as
orders and decrees of the court made in the exercise of its original civil jurisdiction
are enforced.
9. Appeals! all decrees and orders of the court passed under the act can be appealed
against subject to the laws rules and orders for the time being in force. however, no
appeal can be filed only as regards the costs of the proceedings. under section 56,
9 sarin v. suman l984
any person can file an appeal in the supreme court:
23
i. from any decree except a decree nisi or order under the act passed by a
high court on appeal or otherwise;
ii. from any decree except a decree nisi or order under the act passed by a high court in
the exercise of its original jurisdiction from which an appeal does not lie to
the high court.
P ro vis i ons re g a rd i ng re mar ri ag e :
l. Section 57 has now been amended by the amendment of 200l. the six month
waiting period had been abolished and it is now provided that it would be lawful for
either party to the marriage to marry again in cases where a decree for dissolution or
for nullity of the marriage has been passed and
the time for filling an appeal has expired without an appeal being filed in any
court including the supreme court or
such an appeal has been presented but also been dismissed and the
decree or dismissal has become final.
2. it is expressly provided that no clergyman n holy orders of the church of England
can be compelled to solemnize the marriage of any person whose former marriage
was dissolved on the ground of his or her adultery. likewise, no such person can be
exposed to any suit, penalty or censure for solemnizing or refusing to solemnize
the marriage of any such person.
3. lastly, if any minister of a church refuses to perform such a remarriage he must
permit any
other minister in holy orders of the said church entitled to officiate within the
diocese to perform such marriage service in such church or chapel.
24
O th e r p r ov i sions:
1. Section 60 provides that every decree for judicial separation and every order for
protection of property obtained by a wife under the act is to be deemed to be valid so
f
2. ar as may be necessary for protecting any person dealing with the wife until such
decree or order is reversed or discharged. Even if such decree or order is reversed,
discharged or varied it does not affect any rights or remedies which any person
would otherwise have had in respect of any contracts or acts of the wife entered into
or done after the date of the decree or order but before the date of its reversal,
discharge or variation. Likewise, an indemnity is given to all persons making any
payment to the wife without notice of the reversal, discharge or variation of such
decree or order.
2. Section 6l clarifies that after the act came into force no person competent to
present a petition under section 2 or l0 of the act can maintain a suit for criminal
conversation with his wife. However, this section is no bar for the prosecution
and punishment of the adulterer under section 497 of the indian penal code (bwye
v. Kirk l928).
3. Section 62 empowers the high court to make rules under the act, as it may
consider expedient from time to time. Such rules may also be altered or added to
from time to time. All such rules:
Should be consistent with the provisions of the act and the civil
procedure court and
Must be published in the official gazette.
lf a rule made under section 62 is not consistent with the act, it will
not be valid (Friedlander v. Friedlander)
25
39
Foot Not es :
1. The words "in India" omitted by Act No. 3 of 1951.
2. Substituted for the oriina! first "arara"h by A# 19$8.
3. Substituted by A# 195%& for certain words.
4. Substituted for the words "e'ce"t (art ) States" by Act No. 3 of 1951.
5. Substituted by Act No. *5 of 19*+.
6. Inserted by Act No. 3% of 19*,.
7. Substituted for the former c!ause by A#. -No. *. 195+.
8. Substituted by the /imacha! (radesh -Ada"tation of 0aws on State 1 2oncurrent Sub3ects. #rder&19+8& w.e.f.
1st. No4ember& 19++.
9. Substituted by the 0a5shadwee" -A!teration of Name . Ada"tation of 0aws #rder& 19,$& for "0accadi4e&
6inicoy and Amindi4i Is!ands" w.e.f. 1st. No4ember& 19,3.
10. Inserted by the (un3ab Reorani7ation -2handiarh. -Ada"tation of 0aws on State and 2oncurrent Sub3ects.
#rder 19+8& w.e.f. 1st. No4ember& 19++.
11. Substituted by A# 195%& for the former c!ause.
12. Substituted for "the dominions of /er 6a3esty" by A# 195%.
13. Added by Act No. 1% of 191*.
14. Substituted for the oriina! section 1,A by A# 193,.
15. Substituted by Act No. 3 of 1951& for certain words.
16. Second "arara"h omitted& Act No. 3 of 1951.
17. Now see the Indian Succession Act& 19*5 -Act No. 39 of 8ear 19*5..
18. Now see the 2ode of 2i4i! (rocedure& 19%8 -Act No. 5 of 8ear 19%8..
19. The words "or of re4ersa! of 3udicia! se"aration& or for restitution of con3ua! rihts& or for damaes& sha!! bear
a stam" of fi4e ru"ees& and" re"ea!ed by Act No. , of 18,%.
20. The words "in the first& second and third cases mentioned in this section"& re"ea!ed by Act No. , of 18,%.
21. The words "sha!! bear a stam" or eiht annas and" re"ea!ed by Act No. , of 18,%.
22. Substituted by A# 195%& for the words "the (ro4inces" which had been substituted by A# 19$8& for the words
")ritish India".
23. Substituted by A# 195% for the words "/er 6a3esty in 2ounci!".
24. The word "9nited" re"ea!ed by Act No. 1* of 18,3.
*5. The words "and Ire!and" re"ea!ed by Act No. 1* of 18,3.